- As the Justin Gimelstob mess made abundantly clear, men's tennis' leadership structure is broken. Our legal analyst Michael McCann lays out 10 things the ATP should do to restore some credbility.
Tennis is beginning to clean up the wreckage from Hurricane Gimelstob. Since pleading no contest to a violent crime on April 22, Gimelstob triggered a sort of morality inquiry within the sport that unfolded in real time. Though a California judge, Upinder S. Kalra, ruled that Gimelstob had committed a “violent, unprovoked attack in public in front of children,” Gimelstob initially declined to step down from his various positions within the sport. Under mounting pressure, on May 1, he resigned from both the ATP board and Tennis Channel. But it was a moment of reckoning.
While conflicts of interests are as embedded in tennis as yellow ball—and it’s always been thus—this most recent episode, extraordinary in its unseemliness, opened a portal into the sheer depth of tennis’ conflicts, as well as the ATP’s questionable corporate governance.
With hope—or, perhaps, irrational optimism—that some good could come from this ugliness, we propose that tennis use this occasion as a precipice for some soul-searching, but also some practical truth and reconciliation. Perhaps the sport could examine the flaws that enabled this situation to take hold. Perhaps we could begin to draft policy to address some of the most problematic defects in the system.
I summoned my colleague Michael McCann—the best sports law journalist in the business—to help.
I invited Mike—a relative stranger to tennis, approaching this with fresh and unclouded perspective—to study the situation in tennis and apply best practices from other sports. I availed myself to answer factual questions, but offered no subjective judgments. His analysis is specific to the ATP, but much of this could apply to other organizations as well. Here are his top-line conclusions...
Justin Gimelstob has long been a walking contradiction in the world of tennis. The 42-year-old former player had been a coach, broadcaster, TV show producer, governing authority—and in the eyes of many, a sexist, a homophobe and a batterer. He has bid for a production contract from those he’s supposed to oversee. He has broadcasted matches of players he coaches. He has enjoyed an authoritative role in the sport despite uttering boorish comments. In spite of it all, Gimelstob had, until now, faced no meaningful repercussions from the tennis community.
The controversies surrounding Gimelstob are horrible from many angles, yet they go well beyond him. Many influential persons in tennis have hid behind a “hear no evil, see no evil” mentality. While facing felony charges, he, incredibly, continued serving as an ATP board member—and, along with Novak Djokovic, appeared to play a leading role in pushing out the previous head of the ATP, Chris Kermode. And then the ATP board, incredibly, let Gimelstob remain even after he pleaded no contest to a violent felony. He didn’t leave the board until he decided it was time to go. The silence of other board members was both deafening and predictable.
The ATP Tour itself is part of the problem. It’s a Delaware corporation that manages the global pro men’s tennis tour. Its membership includes both labor and management—namely, pro men’s tennis players and the various businesses that own and operate tournaments. To that end, the ATP is governed by a seven-member board of directors. Three of those members are elected by tournament owners, three are elected by players and the last seat is occupied by the ATP chairman/president.
Labor and management co-running the sport may sound appealing in the abstract, but it has often led to inertia and inaction. Board members have direct financial ties to agencies that run tournaments and represent players, just as they are connected to television contracts and decisions on match commentators. There is no independence.
The ATP Tour is also constrained by Delaware laws that govern corporate boards. As explained below, these laws make it procedurally difficult to remove a board member—even one with baggage as extensive as Gimelstob’s.
How could the sport be made more legitimate? Here are 10 non-exhaustive ideas.
1. Explore reorganizing men’s tennis so it functions more like a traditional league
The ATP is structured very differently from other major pro leagues. That structure significantly impacted and limited the ATP’s options with Gimelstob.
The ATP is incorporated in Delaware as a “not-for-profit nonstock membership corporation.” This complicated phrase means that, among other things, Delaware laws for corporate boards restrict how the ATP board operates. Most importantly, these laws obligate the board to adhere to its own bylaws and interpretations of those bylaws.
The board, for example, couldn’t suspend Gimelstob or temporarily strip him of authority. He was a duly elected member who could only be removed upon a finding of “cause.” The board has treated “cause” as requiring a finding of wrongdoing—not just an allegation of wrongdoing. If the board treated Gimelstob differently, that could have provided him with grounds to sue.
The board also needs an odd number of voters to ensure that votes have majorities, some of which require super majorities. For the board to effectively discharge its duties, Gimelstob had to be on the board or removed and replaced. There was no middle ground. As cogently explained by The New York Times’ David Waldstein, any attempt to remove Gimelstob would have required either unanimous consent by the five voting members on the seven-member board (by board rule, Gimelstob and Kermode were barred from voting in that matter), or support from at least six of the 10-member player council.
None of this is to say the board was a prisoner of its own rules or of Delaware law. It could have voted to remove Gimelstob. In fact, it held a vote last year on Gimelstob but the vote came up short.
Gimelstob maintained innocence in the face of charges that he attacked Randall Kaplan—from behind and in front of Kaplan’s children—during an altercation on Halloween last year. He did so until pleading no contest last month to a felony that was subsequently reduced to a misdemeanor by Judge Kalra. In California, a “no contest” or “nolo contendere” plea is functionally akin to a guilty plea, and involves the defendant not wishing to contest the allegations against him or her.
Had Gimelstob not “voluntarily” stepped down last week, the board would have clearly had cause to remove him. But until Gimelstob’s criminal matter had been resolved, it’s not certain that there was adequate “cause,” as that word has been understood by the board, to remove him.
Gimelstob’s lasting power on the board at least in part reflected the ATP’s design, which is unlike that of other major pro leagues. The NFL, NBA, MLB and NHL are joint ventures of independently owned teams (i) governed by league rules; (ii) restricted by collective bargaining agreements; and (iii) beholden to powerful commissioners who possess significant discretion.
The ATP Tour, in contrast, tries to balance the often-disparate interests of both individual players, who range widely in talent and earning-power, and tournaments of varying sizes. Meanwhile, the ATP board is constrained by assorted legal restrictions related to board governance. The ATP’s approach has been profitable for some, but has led to varying conflicts of interests and a board that is captive to its own rules.
Could men’s tennis be re-imagined so that players, as Djokovic recommends, unionize into a formalized bargaining unit? Could that union in turn negotiate a collective bargaining agreement with a pro tennis league that negotiates on behalf of itself and tournaments? Of course, executing these changes would be very difficult, if not impossible. Pro tennis has operated a certain way for a long time, and undoing the familiar is never easy. Still, given the various controversies faced by tennis, it would behoove the sport to explore potential redesigns.
2. Empower a commissioner to preserve the integrity of the sport
The ATP has an executive chairman/president, but his position accords him little suasion over other board members or—more importantly—the sport itself. That’s not to say the ATP Board’s leader is irrelevant. Hardly. This executive helps generate tournament and sponsorship opportunities, plays a key role in broadcast and licensing negotiations and is instrumental to managing player rankings.
But he lacks perhaps the most fundamental responsibility: maintaining moral authority. Indeed, as David Law recently noted on Twitter, Kermode had no ability to remove Gimelstob despite being the ATP’s leader and despite Gimelstob facing a felony charge. Under board rules (and accompanying Delaware laws), Gimelstob could only be removed by a board vote, which itself hinged on finding adequate cause.
The inability of the leader of the ATP to take action against Gimelstob is especially interesting when considering the ATP’s rulebook, which contains extensive policies to address and attempt to remedy the impact of player misconduct. Indeed, a player faces possible suspension when “charged with a violation of a criminal or civil law of any jurisdiction.” The suspension can last until “final determination of the criminal or civil proceeding.” Gimelstob, meanwhile, was insulated by virtue of his board membership. The fact that he faced a felony charge did not have any meaningful impact on his association with the ATP.
As noted above, the ATP would need to be radically changed to become more like the NBA, NFL and other major pro leagues to change the way it operates. Still, the ATP could learn from those leagues and work within the confines of Delaware law to give the ATP’s leader more authority. This is particularly true in regard to how to best utilize a commissioner or similar figure.
In the major leagues, the commissioner is explicitly charged with protecting the integrity of the sport and public confidence in the league. When San Francisco Giants president and CEO Larry Baer was videotaped jostling with his wife over possession of a cell phone, MLB commissioner Rob Manfred didn’t turn the other way. He suspended Baer. When Los Angeles Clippers owner Donald Sterling made racist remarks about African-Americans, NBA commissioner Adam Silver didn’t pretend not to hear those words. He permanently kicked Sterling out of the league. Neither Baer nor Sterling was accused of criminal acts, but their acts nonetheless undermined the public’s trust in the league.
If something as straightforwardly disturbing as a board member facing felony charges doesn’t warrant suspension by the ATP board, then it raises serious questions about why a board has been constituted at all.
The commissioner in other leagues is also forbidden from possessing any financial interest—direct or indirect—in any professional sport. This dynamic doesn’t make the commissioner entirely neutral, as some critics of NFL commissioner Roger Goodell would argue, but it goes a long way toward removing the possibility of conflicts that undermine the commissioner’s credibility.
We realize that the position of a commissioner might not work for pro tennis given legal restrictions related to the laws of boards. Even if the law posed no obstacle, implementing a commissioner figure would encounter some practical hurdles. Tournaments’ interests, for one, are often not aligned. Owners of tournaments generally do not view themselves as engaged in a joint venture as owners of NBA teams or NFL teams do. We also know that competing tournaments joining hands in any way that impacts competition could raise antitrust concerns (though those concerns would be diminished if the net result was a more ethically centered and thus more viable pro tennis league, or if the players unionized and negotiated a CBA).
We also know it’s easy to raise obstacles to ideas. Whether a commissioner would work in men’s tennis is a concept the ATP ought to consider.
3. Use neutral arbitrators
The ATP could also increase opportunities for objective dispute resolution, provided any changes worked within the boundaries of bylaws and the law. Perhaps a panel of three arbitrators, none of whom has any interest in the outcomes of decisions, could review important questions faced by the board.
Neutral arbitrators could be used for other disputes within tennis and its governing bodies. The various organizations might be yielding some power and authority, but the overall benefit to the sport would be significant.
Other leagues routinely employ neutral arbitrators. The NFL, for instance, uses neutral arbitration to resolve disputes over pay issues. Colin Kaepernick’s grievance played out through that process and he was provided an impartial forum to raise his arguments while the NFL could raise its defenses.
A league that uses more credible means of resolving disputes is a more credible league.
4. Curb self-dealing
The model of pro tennis provided by the ATP Tour has been around for 47 years. Donald Dell, Jack Kramer, and Cliff Drysdale’s creation probably can’t be blown up. It doesn’t need to be, either. However, ATP board members are inclined to pursue their own interests. Gimelstob was Exhibit A for that phenomenon, as he operated in a space where he could do whatever he liked. Daniel Kaplan of Sports Business Journal reports that the ATP paid Gimelstob’s production company, Without Limit Productions, $3.56 million between 2012 and 2017, with the company producing the show ATP Uncovered. Per Kaplan, the ATP also paid Gimelstob $1.4 million during that time.
The ATP Board should measures in place to stop self-dealing, or it will continue to be heavily conflicted. If a sports agency executive is a board member, he or she should not vote on decisions that impact the agency’s finances.
5. Mandatory disclosures of conflicts
Some conflicts of interests are unavoidable. However, they should be made known.
Along those lines, it is customary for sports leagues and governing bodies to use a conflict of interest questionnaire.
One sports organization, for instance, asks its board members if they are involved with any commercial entity with which the sports organization conducts business. If the board member says “yes,” he or she must list those entities and related details. This organization also demands that the board member reveal whether he/she or any family member has a financial interest, or receives any remuneration or income from any commercial entity with which the sports organization conducts business.
The ATP Board’s bylaws and other operating documents are confidential. It’s thus unclear if the board uses disclosure of conflict forms and, if so, whether any disclosures have meaningful consequences. Assuming the board’s current system for disclosures is inadequate, the board should create measures that require board members to reveal, in writing, their outside activities, employment, investments, assets and other properties that might pose a conflict of interest.
6. Be transparent and make documents available
The ATP is configured as a membership, non-stock corporation. It is thus private and doesn’t “have to” share documents that would be of interest to the tennis community. But other private leagues do reveal those documents, and the ATP probably should as well.
Take the ATP’s operating bylaws, for example. A fan can’t go on the ATP’s website to see if Gimelstob violated the board’s code of conduct or, if he didd, how a punishment would be assessed. A sports organization that seeks to be transparent and credible would make everything available.
The NBA, like the ATP, is a private entity. It is a joint venture of 30 teams. Yet unlike the ATP, the NBA places online numerous documents, including its bylaws, constitution and the CBA it negotiated with players. The NBA also makes available reviews of referees’ calls during game. Transparency and accountability have gone a long way in building the NBA’s fan base.
7. Establish an organizational culture that doesn’t tolerate crime and conflict
By failing to hold Gimelstob accountable, the ATP not only enabled his conduct but also signaled to the rest of the ATP’s board that even felony charges do not warrant expulsion. Those board members thus know that if they are accused of running afoul of the law in violent ways, they won’t necessarily lose their seat. Similarly, by signaling that conflicts of interest are tolerable, board members are not discouraged from personally profiting from their positions.
As discussed above, the board is constrained by its own bylaws and Delaware laws. But if those restrictions undermine the board itself, it may be time for the ATP to rethink the concept of a board.
8. Don’t ignore perceived and potential conflicts
Actual conflicts of interest aren’t the only problem for the ATP board. Perceived or apparent conflicts are also problematic since they de-legitimatize the board. Many corporate boards prohibit members whose private interests could—and not necessarily do—influence the performance of their duties.
The ATP board seems to have those types of potential conflicts. For example, a “players’ side” board member, David Egdes, is a senior vice president at Tennis Channel. He is connected throughout the sport in ways that present potential conflicts. Another board member on the “tournament side,” Gavin Forbes, works for the IMG agency, which represents players AND owns and operates tournaments. Even if no such conflicts actually surface, their possibility could nonetheless influence the board.
It’s not as if the ATP is unaware of the impact of potential conflicts. The ATP’s rulebook states that officials who work at the ATP, as well as Grand Slam, ITF and WTA events “must maintain complete impartiality with respect to all players at all times and must avoid any real or perceived conflicts of interest.” Such language could also apply to board members.
9. Prohibit gifts and illicit favors
The ATP board should borrow a page from NCAA amateurism and lobbying laws, and disallow board members from accepting gifts (assuming the board’s bylaws, which are not public, do not already contain such a policy). This measure would enhance the board’s credibility, both in terms of substance and optics.
10. Require board members to supply regular financial disclosures
Without access to the ATP board’s bylaws, it is difficult to assess its protocols on transparency and avoidance of conflict. However, one reasonable step would be regular financial disclosures by board members.